The Ontario Court of Appeal will review ‘unlawful object’ murder in R. v. J.S.R., where a man was accused of commencing a gun battle on a crowded Toronto street that resulted in 15-year-old Jane Creba being killed. [Aaron Harris / The Canadian Press] Click here to see full sized version.

A nightclub owner starts a fire at his club to collect insurance. He intends to blame the fire on a disgruntled patron and sets it as the nightclub is closing. The fire spreads rapidly, and 12 patrons are burned to death. He is charged with 12 counts of murder.

The jury concludes that: 1) the accused set the fire to collect insurance money; 2) he knew that setting the fire was likely to cause death; 3) he caused 12 deaths; and 4) he wanted to collect on the insurance policy without causing death. On the facts as found by the jury, did the accused commit murder or manslaughter? Should the jury be able to enter a conviction for murder on these facts?

The common law defines murder as 'unlawfully killing with malice aforethought.' The term 'malice aforethought' applies to a number of states of mind, including knowledge on the part of the offender that the act to be done is likely to cause death or serious bodily injury, whether coupled with an intention to produce them or not.

The commissioners who produced the English Draft Code (E.D.C.) of 1878 argued that no valid distinction can be drawn between a man who shoots another through the head, expressly meaning to kill him, a man who strikes another a violent blow, careless whether he dies of it or not and a man who, 'intending for some object of his own, to stop the passage of a railway train, contrives an explosion of gunpowder or dynamite under the engine, hoping indeed that death may not be caused, but determined to effect his purpose whether it is caused or not.'

In 1892, Canada went where England feared to tread and the murder provisions of the E.D.C. were largely adopted in the first Canadian Criminal Code. Following the advice of the E.D.C. commissioners, the new Code provided that culpable homicide is murder 'if the offender, for any unlawful object, does an act which he knows or ought to have known to be likely to cause death, and thereby kills any person, though he may have desired that his object should be effected without hurting any one.' Subject to minor wording changes, this is the present s. 229(c).

The law reports suggest that, for more than 100 years, Canadian prosecutors made little use of this murder provision. The Code provided them with easier routes to murder based on objective states of mind and constructive murder provisions.

With the coming of the Charter, however, these routes were closed off. A number of recent decisions suggest that prosecutorial interest is now focusing on 'unlawful object' murder under s. 229(c).

Section 229(c) did not emerge entirely unscathed from the Supreme Court of Canada’s Charter purge of the Code’s murder provisions. In R. v. Martineau, [1990] 2 S.C.R. 633, the court held, in the context of other murder provisions, that the principles of fundamental justice require that a conviction for murder be based upon subjective foresight of death.

This requirement maintains proportionality between the stigma and punishment attached to a murder conviction and the moral blameworthiness of the offender. The court went out of its way to add that since subjective foresight of death must be proven before a conviction for murder can be sustained, the phrase 'ought to know is likely to cause death' in s. 229(c) probably infringes the Charter.

This is because it permits conviction on proof of objective foresight of death (i.e. a reasonable person would have foreseen death). The court also opined that it is unlikely this aspect of s. 229(c) can be saved under s. 1 of the Charter.

A number of learned commentators are of the view that s. 229(c) is antiquated for reasons that go beyond its objective foresight language. In response to a decision of the Ontario Court of Appeal confirming a murder conviction based on s. 229(c) (R. v. Meiler, [1999] O.J. No. 1506), Professor R.J. Delisle has argued that s. 229(c) should be interpreted narrowly, to only apply to a person who had subjective awareness of the likelihood of the actual victim’s death (R.J. Delisle, 'Unlawful Object is Alive and Well,' (1995) 25 C.R. (5th) 179).

In Canadian Criminal Law (Carswell 2001), Professor Don Stuart decries resort to s. 229(c) as a return to 'common law complexities' that leave the jury trying to identify an unlawful objective distinct from the immediate object accompanying the act of killing.'

Martineau hints that the stigma and punishment attaching to the most serious of crimes, murder, should be reserved for those who intentionally cause death or intentionally inflict bodily harm that they know is likely to cause death. Section 229(c) visits the stigma and punishment of murder on those who choose to commit a dangerous act to achieve an unlawful object knowing that doing the act is likely to cause death. Does this violate principles of fundamental justice?

There are three s. 229(c) cases winding their way to the Ontario Court of Appeal that may answer this question. In one of them, R. v. J.S.R., [2008] O.J. No. 5505, the accused and others commenced a gun battle in a crowded street with the result that an innocent victim, Jane Creba, was killed.

Returning to our nightclub pyromaniac, on the law as it presently stands he is guilty of 'murder most foul,' even though he did not intend to kill. After s. 229(c) is subjected to close Charter scrutiny, he may only be guilty of manslaughter.

Such a result, however, is not likely to inspire public confidence in the criminal law. Looked at from public safety and denunciation perspectives, it seems just to call someone who chooses to commit an act he knows is likely to cause death a murderer.

John Pearson is a general counsel with the Crown Law Office - Criminal of the Ministry of the Attorney General for Ontario. This article does not reflect ministry policy.